SAPPHO & SAPPHO - [2020] FamCA 488

FAMILY COURT OF AUSTRALIA

SAPPHO & SAPPHO

[2020] FamCA 488

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Lump sum – Where the wife seeks periodic spousal maintenance – Where the husband opposes the order – Where the wife has been the homemaker and primary carer of the children – Where the husband provided financially for the family – Where the wife is unable to adequately support herself – Where the husband’s expenses have been exceeding his income – Where the husband’s current and future income is unclear due to the impacts of COVID-19 on his profession – Where the husband has an appropriate source of funds from which the wife can receive lump sum spousal maintenance – Orders

FAMILY LAW – PROPERTY – Interim Distribution – Costs - Where the wife seeks litigation funding or a dollar for dollar order – Where the husband opposes the order – Where the wife has been unable to pay her legal fees – Where the husband has paid his legal fees – Where the property pool is modest – Where there is a financial disparity between the parties – Where the amount the wife seeks is not unreasonable and the amount she will ultimately receive will exceed it – Orders

FAMILY LAW- CHILDREN – With whom a child lives and spends time with – Where the children currently live with the wife and spend time with the father – Where the wife seeks an order that the husband must personally supervise the children when they are in his care in the school holidays– Where the husband intends that any occasion that others may care for the children when in his care will be of limited duration – Not in children’s best interests to make orders sought.

Family Law Act 1975 (Cth) ss 60CC, 72(1)(b), 79, 80(1)(h)

Hall & Hall (2016) 257 CLR 490
Maroney & Maroney [2009] FamCAFC 45
McCrossen & McCrossen [2006] FLC 93-283

APPLICANT:

Ms Sappho

RESPONDENT:

Mr Sappho

FILE NUMBER:

ADC

885

2020

DATE DELIVERED:

17 June 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

26 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Cocks

SOLICITOR FOR THE RESPONDENT:

Tindall Gask Bentley

Orders

That the husband do pay to the wife from monies withdrawn from the “Children’s Account” the sum of SIXTEEN THOUSAND TWO HUNDRED AND FIFTY THREE DOLLARS ($16,253) by way of lump sum spousal maintenance calculated at the rate of FIVE HUNDRED AND TWENTY ONE DOLLARS ($521) per week over a period of 31 weeks.
That on or before 30 days from the date of this order the husband do cause to be paid to the solicitors for the wife the sum of FIFTY THOUSAND DOLLARS ($50,000) by way of partial settlement of property (“the settlement sum”).
That in default of the payment of the settlement sum the parties will do all things necessary and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SAPPHO & SAPPHO

Details

AGLC: SAPPHO & SAPPHO [2020] FamCA 488
Case: [2020] FamCA 488
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the matter of SAPPHO & SAPPHO, Berman J considered applications by the wife for interim spousal maintenance and litigation funding, and by the wife for orders concerning the children's living arrangements. The wife, who had been the primary homemaker and carer for the children, sought periodic spousal maintenance, which the husband opposed. The husband's financial position was uncertain due to the impact of COVID-19 on his profession, with his expenses reportedly exceeding his income. The wife also sought litigation funding due to her inability to pay her legal fees, while the husband had met his own. Regarding the children, the wife sought an order for the husband to personally supervise them during school holidays when in his care, with the husband indicating any care by others would be of limited duration.

The court was required to determine whether to grant interim lump sum spousal maintenance to the wife, considering the husband's financial circumstances and the wife's inability to support herself. It also had to decide on the wife's application for litigation funding or a dollar-for-dollar property settlement order, given the modest property pool and financial disparity between the parties. Finally, the court needed to assess whether the wife's proposed orders regarding the husband's supervision of the children during school holidays were in the children's best interests.

Berman J ordered the husband to pay the wife $16,253 by way of lump sum spousal maintenance, calculated at $521 per week for 31 weeks, to be paid from the "Children's Account". The court also ordered the husband to pay $50,000 to the wife's solicitors within 30 days as partial settlement of property. In the event of default, the Suburb D property was to be listed for sale, with the net proceeds to be divided equally between the parties up to $50,000 each, and any balance to be held pending further order. The court further ordered that the parties would jointly instruct valuers for various properties and the husband's interest in a group of companies, subject to their agreement. The application for the husband to personally supervise the children during school holidays was dismissed, with the court finding such an order was not in the children's best interests.

Orders

Orders of the court

That the husband do pay to the wife from monies withdrawn from the “Children’s Account” the sum of SIXTEEN THOUSAND TWO HUNDRED AND FIFTY THREE DOLLARS ($16,253) by way of lump sum spousal maintenance calculated at the rate of FIVE HUNDRED AND TWENTY ONE DOLLARS ($521) per week over a period of 31 weeks.

That on or before 30 days from the date of this order the husband do cause to be paid to the solicitors for the wife the sum of FIFTY THOUSAND DOLLARS ($50,000) by way of partial settlement of property (“the settlement sum”).

That in default of the payment of the settlement sum the parties will do all things necessary and sign all documents as may be required to forthwith place the property situate at B Street, Suburb D in the State of South Australia (“the Suburb D property”) on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in the absence of agreement as may be ordered by this Honourable Court and that the net proceeds of sale shall be disbursed as follows:-

(a) FIFTY THOUSAND DOLLARS ($50,000) to be paid to the wife;

(b) FIFTY THOUSAND DOLLARS ($50,000) to be paid to the husband;

(c) The balance (if any) remaining shall be placed in an interest bearing account in the joint names of the parties pending further order of the Court or the joint written consent of the parties.

That upon the further agreement of the parties, they will jointly instruct E Group to value the following properties:-

(a) F Street, Suburb G SA (“the Suburb G property”);

(b) B Street, Suburb D SA (“the Suburb D property”);

(d) J Street, Suburb K SA (“the Suburb K property”);

(e) Unit L Street, Adelaide SA (“the Adelaide property”).

That upon the agreement of the parties they will jointly instruct CC Group to value the property at M Street, Suburb N SA (“the Suburb N property”).

That upon the agreement of the parties they will jointly instruct O Pty Ltd to value the husband’s interest in the Mr Sappho Group of Companies.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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